Judge declines to dismiss Marine widow's case permanently

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San Diego 
A judge on Friday declined to permanently dismiss the murder case involving Cynthia Sommer, the widow once accused of poisoning her Marine husband with arsenic, saying the law did not give him the authority to do so.

Superior Court Judge John Einhorn had already dismissed the case “without prejudice” more than a year ago, but a defense lawyer asked him to consider dismissing it “with prejudice,” meaning it could not be filed again in the future.

Einhorn said it was unlikely that the high-profile case would find its way back into criminal court.

“I can't imagine this case ever being retried,” he said.

The judge noted in a written ruling that state law allowed him to consider permanent dismissal under two circumstances: insufficient evidence at trial and prosecutorial misconduct. He said the defense did not present any facts that the evidence at trial was insufficient.

The judge said the law precluded him from considering any evidence discovered after Sommer, now 35, was convicted in January 2007. He also determined that there was no misconduct by prosecutors, as the defense claimed.

Sommer's lawyer, Allen Bloom, disagreed.

Bloom argued that Deputy District Attorney Laura Gunn hid evidence that pointed to Sommer's innocence. Specifically, he referred to a second set of tissue samples from Sommer's deceased husband that were tested last year and revealed no arsenic.

Bloom argued that Gunn knew all along that the additional tissue samples existed, but failed to notify the judge, jury or the defense.

“She had the reports; she had the information; she had the knowledge,” Bloom said in court.

District Attorney Bonnie Dumanis issued a written statement Friday supporting Gunn's work. In it, Dumanis said she personally reviewed every aspect of Gunn's handling of this case.

“The accusations made by Ms. Sommer's counsel are untrue,” the statement reads. “At all times during the prosecution of Ms. Sommer, DDA Gunn acted in a professional, ethical, and legally appropriate manner.”

Outside the courtroom Friday, Bloom said he had finished his work with Sommer's case and was turning it over to the lawyers overseeing a lawsuit, filed Thursday in federal court.

In the suit, Sommer accuses various agencies and officials – including the District Attorney's Office and county Medical Examiner's Office – of mishandling her case and violating her constitutional and civil rights. She is seeking $20 million in damages.

Her civil lawyers, Robert Rosenthal and Stephan Barber of Monterey, contend that authorities knew or should have known that the initial tests performed on tissues removed from Todd Sommer's body were flawed.

The tests, performed by the Armed Forces Institute of Pathology, showed extremely high levels of arsenic in two of Sommer's organs and normal levels in others, which the lawyers say suggests contamination.

The attorneys also claim authorities knew or should have known that the second set of tissues, which led to the case being dismissed in April 2008, was “buried in a box in a closet at the Balboa Naval Hospital.”

Sommer said following the Friday hearing that she probably won't ever be charged again in the criminal case, but it remains a possibility.

“I need to get my life back together and rebuild what I have,” Sommer said.

She said she now lives in Michigan, where she has been reunited with her four children, ages 17, 15, 13 and 9. She has returned to school full-time and hopes to eventually get her master's degree in business and study tax law.